TERMS AND CONDITIONS

1.	Definitions
1.1	“Affiliate(s)” shall mean, with respect to the Licensee entity signing this Agreement: (1) all business units and divisions of the entity signing this Agreement, or the parent(s) of the entity signing the Agreement, and (2) any other entity that is an affiliate as that term is defined in Rule 12b-2 under the United States Securities Exchange Act of 1934.  Such entity shall be deemed to be an “Affiliate” only so long as such control exists.  Upon request, Licensee agrees to confirm the Affiliate status of a particular entity. 
1.2	“Ancillary Program(s)” shall mean the third party materials delivered with the Licensed Software as specified in the Documentation.
1.3	“Authorized User(s)” shall mean the named or specified (by password or other user identification used by Licensee or its authorized users in the normal course of business) individuals authorized by Licensee to use Licensed Software, regardless of whether the individual is actively using the Licensed Software at any given time.  Licensee may replace Authorized Users as necessary to reflect personnel changes.  Authorized Users may include the directors, officers, members, managers, employees, agents, of Licensee, its Affiliates or its or their respective third parties; provided that such third party is limited to use of the Licensed Software (i) only as configured and deployed by Licensee or its Affiliates, and (ii) in connection with or in support of Licensee’s or its Affiliates’ business operations as conducted by or through such third party, including but not limited to the installation, administration or implementation of the Licensed Software for Licensee.  For avoidance of doubt, Authorized Users may include (a) all persons and entities for which Licensee or its Affiliates are required by contract to process data; or (b) any third party service company or independent contractor that Licensee or its Affiliate has retained or shall retain to install, maintain or operate its or their computer systems or networks, subject to all of the restrictions of this Section.
1.4	“Commencement Date” shall mean the date on which the Licensed Software is first delivered to Licensee. 
1.5	“Documentation” shall mean information published by Licensor in varying mediums which may include product information, operating instructions and performance specifications that Licensor generally makes available to users of its products.  Documentation does not include marketing materials or those materials that the Licensee herein may request from Licensor.  Under no circumstances shall Licensee's requests, whether written or verbal, for documentation expand the scope of Licensor obligations, duties, warranties, or representations herein.
1.6	“Licensed Software” shall mean (i) the object code version of the Licensor software identified as [_____], (ii) associated Documentation, and (iii) Updates to such [______].  Licensed Software shall not include Ancillary Programs.
1.7	“Licensor Materials” shall mean any materials provided to Licensee by Licensor in the course of performing Services other than Support Services. Licensor Materials shall not include the Licensed Software or the Ancillary Programs.
1.8	“Order Form” shall mean the order form provided by Licensor. 
1.9	“Services” shall mean all services provided by Licensor under this Agreement, including Support Services. 
1.10	“Support Services” shall mean the services provided by Licensor pursuant to its Support Services Policy. 
1.11	“Term” shall mean the period during which Licensor provides Licensee with access to the Licensed Software. 
1.12	“Update(s)” shall mean (a) subsequent releases of the Licensed Software that Licensor makes generally available to its Licensees who are current on their Support Services fees, and that (i) add new features, functionality, and/or improved performance, (ii) operate on new or other databases, operating systems, or client or server platforms, or (iii) add new foreign language capabilities; (b) bug or Error fixes, patches, Workarounds, and support releases; (c) new point releases, including those denoted by a change to the right of the first decimal point (e.g., v3.0 to 3.1), and (d) new major version releases, regardless of the version name or number, but including those denoted by (i) a change to the left of the first decimal point (e.g., v5.0 to 6.0) or (ii) the addition of a date designation or a change in an existing date designation (e.g., v2018 to 2020); provided, however that Updates shall not include new or separate products which Licensor offers only for an additional fee to its Licensees generally, including those Licensees purchasing Support Services.
2.	License
2.1	License Grant.  
Subject to the terms and conditions of this Agreement, Licensor grants Licensee and its Affiliates the following worldwide, nonexclusive, non-transferable, rights, solely for their internal business operations during the Term: (i) to use the Licensed Software and Ancillary Programs subject to all of the terms of this Agreement; (ii) to use the Documentation as provided therein solely for purposes of supporting licensed use of the Licensed Software and Ancillary Programs; and (iii) to use the Ancillary Programs only in combination with the Licensed Software and solely for purposes of operating the Licensed Software.  With respect to any and all copies of the Licensed Software, Ancillary Programs, and Documentation, Licensee shall ensure that each copy contains all titles, trademarks, and copyright and restricted rights notices, and that all such copies shall be subject to the terms and conditions of this Agreement.
Licensee shall, upon written request, provide Licensor with an accurate current count of the number of Authorized Users with access to the Licensed Software under this Agreement.  Multiple log-ins under the same or a single user name is prohibited.  Licensee shall not make the Licensed Software available to anyone other than Authorized Users and shall be responsible and liable for any use of the Licensed Software not authorized under this Agreement.  Licensee agrees that any usage by such Authorized Users is in accordance with the terms and conditions of this Agreement and that Licensee is responsible for ensuring that any usage by such Authorized Users is in accordance with the terms and conditions of this Agreement.
Licensee shall, upon written request, provide Licensor with an accurate current count of the amount of data under Licensee’s management.
2.2	License Restrictions.  (i) Licensee and its Affiliates shall not use the Ancillary Programs as stand-alone applications; (ii) Licensee and its Affiliates shall not reverse engineer, disassemble, decompile, or make works derived from any version of the Licensed Software or Ancillary Programs or attempt to generate or access the source code for the Licensed Software or Ancillary Programs, whether by converting, translating, decompiling, disassembling or merging any part of the Licensed Software or Ancillary Programs with any other software; (iii) Licensee shall not copy the Licensed Software except as may be required by law; (iv) Licensee and its Affiliates shall not sublicense or use the Licensed Software or Ancillary Programs for commercial time-sharing, rental, outsourcing, or service bureau use, or to train persons other than Authorized Users, unless previously agreed to in writing by Licensor; and (v) Licensee and its Affiliates shall not sublicense or use the Licensed Software for performing comparisons or other "benchmarking" activities, either alone or in connection with any other software (and Customer agrees not to publish or disclose any such performance information or comparisons)..
2.3	Retention of Rights.  Licensor reserves all rights not expressly granted to Licensee and its Affiliates in this Agreement. Without limiting the generality of the foregoing, Licensee acknowledges and agrees that:  (i) except as specifically set forth in this Agreement, Licensor and its suppliers retain all rights, title and interest in and to the Licensed Software, Ancillary Programs, Documentation, and Licensor Materials, and Licensee and its Affiliates do not acquire any right, title, or interest to the Licensed Software, Ancillary Programs, Documentation, or Licensor Materials except as set forth herein, (ii) any configuration or deployment of the Licensed Software or Ancillary Programs shall not affect or diminish Licensor’s rights, title, and interest in and to the Licensed Software or Ancillary Programs. Nothing in this Agreement shall limit in any way Licensor's right to develop, use, license, create derivative works of, or otherwise exploit the Licensed Software and the Ancillary Programs, or to permit third parties to do so, and no implied licenses flow from this Agreement.
2.4	Open Source Licenses. The Licensed Software includes certain open source code software and materials that are subject to their respective open source licenses, a list of which is available from Licensor (“Open Source Licenses”).  Such Open Source Licenses contain conditions with respect to warranty, copyright notices and other provisions.  The Licensed Software is subject to the provisions of the Open Source Licenses.
2.5	Third Party Hosting.  In the event Licensee desires to have a third party host the Licensed Software, Licensee shall give notice to Licensor and obtain Licensor’s prior written approval to any third party hosting arrangement, which approval shall not be unreasonably withheld.
3.	Orders form; Services; Use of the Licensed Software 
3.1	Orders and Payment Terms. This Agreement is entered into in connection with the parties’ Order Form.  Payments, including license fees, shall be made according to the terms of the Order Form.  Licensee’s obligation to pay license fees is absolute and unconditional.  Licensee shall pay Licensor interest on past-due amounts payable under this Agreement at a rate equal to one and one-half percent (1½%) for each month or portion thereof that payment remains delinquent.  All fees are accountable and payable in U.S. Dollars.  License fees and any other fees due hereunder are exclusive of all U.S., foreign, state, municipal and other governmental excise, sales, use, customs, value added or other taxes, fees or duties now in force or enacted in the future, including without limitation, all taxes in connection with the use, ownership and licensing of software, but excluding taxes based on Licensor’s income.  Unless disputed and actively being contested by Licensee in good faith, Licensee shall pay within fifteen (15) days of the applicable due date all such taxes, fees, duties and charges which arise out of or in connection with this Agreement or any license granted herein.  If Licensor is required at any time to pay any such tax, fee, duty or charge, Licensee shall promptly reimburse Licensor, at Licensor’s discretion, any such taxes, fees and duties that may be added to the license fee.  
3.2	Support Services for Licensed Software. During the Term, Licensee agrees to purchase Support Services for the Licensed Software licensed pursuant to this Agreement. Licensor shall provide Support Services for the Licensed Software pursuant to the Licensor’s Support Services Policy.
3.3	Other Services. Licensor will provide other Services (other than Support Services, which shall be provided as set forth in Section 3.1 above), subject to availability, in accordance with Licensor’s Services price list in effect at the time such Services are ordered. 
3.4	Use of the Licensed Software. Licensee acknowledges that in order to achieve best results using the Licensed Software, and in order to maintain quality assurance, the Software must be used according to the instructions in the Documentation.  Any attempt to use the Software for other will constitute a breach of this Agreement and may also result in poor performance of the Licensed Software.  Instructions, warnings and notices detailing the requirements, procedures and measures to be taken and complied with for the proper operation of the Licensed Software are contained in the Documentation.  Licensee warrants and represents that it has complied with, and will continue to comply therewith as long as continues to use the Licensed Software.
3.5	Usage Data. The Licensed Software enables Licensor to process certain data regarding usage and transmit such data to Licensor’s systems.  Licensee shall ensure that its computer systems containing and transmitting such data are secure, and that it establishes internal procedures for maintaining the privacy of such information.  Licensee hereby acknowledges that Licensor has the right, and the Licensee gives, and shall give, permission for, such collection and transmission of data.
4.	Term and Termination/Expiration
4.1	Term.  This Agreement and the licenses granted hereunder shall take effect on the Commencement Date and shall continue through the Term, unless earlier terminated in accordance with the terms of this Agreement.
4.2	Termination for Material Breach. Licensee may terminate this Agreement upon written notice if Licensor materially breaches this Agreement and fails to cure such breach within sixty (60) days following receipt of written notice specifying the breach in detail.  Licensee agrees that if it fails to use the Licensed Software in accordance with all of the terms and conditions of this Agreement, then Licensor shall have the right to terminate Licensee’s use of the Licensed Software pursuant to this paragraph immediately without a cure period. 
Licensor may terminate this Agreement upon written notice if Licensee materially breaches this Agreement and fails to cure such breach within twenty (20) days following receipt of written notice specifying the breach in detail.  In addition, Licensee acknowledges and agrees that, due to the unique nature of the Licensed Software, Ancillary Programs, Documentation, Licensor Materials, and other Confidential Information of Licensor, there may be no adequate remedy at law for material breach of this Agreement with respect to the Licensed Software, Ancillary Programs, Documentation, Licensor Materials, and other Confidential Information of Licensor, and that such breach could cause irreparable harm to Licensor; therefore, Licensor shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement.  
4.3	Termination for Insolvency.  This Agreement may be terminated by either party, immediately upon written notice to the other party in the event (i) the other party files a petition for bankruptcy or is adjudicated a bankrupt; (ii) a petition in bankruptcy is filed against the other Party and such petition is not dismissed within sixty (60) calendar days; (iii) the other party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (iv) the other Party discontinues its business; or (v) a receiver is appointed for the other Party or its business.  
4.4	Effect of Termination or Expiration.  Termination of this Agreement or any license to the Licensed Software Program or an Ancillary Program shall not limit either party from pursuing other remedies available to it, including but not limited to injunctive relief, nor shall such termination relieve Licensee of its obligation to pay all fees that have accrued or are otherwise owed by Licensee. The parties’ rights and obligations under Sections 2.2, 2.3, 4, 5.3, 5.4, 6, and 7 shall survive termination or expiration of this Agreement. 
4.5	Handling of Licensed Software and Confidential Information upon Expiration or Termination.  Upon expiration or termination of this Agreement, Licensee and its Affiliates shall (i) cease using the applicable Licensed Software, Documentation, and related Confidential Information of Licensor, and (ii) certify to Licensor within thirty (30) days after termination that Licensee has destroyed, or has returned to Licensor, the Licensed Software, Ancillary Programs, Documentation, related Confidential Information of Licensor, and all copies thereof, whether or not modified or merged into other materials. 
5.	Warranties and Remedies; Indemnification
5.1	Limited Warranties and Disclaimers
	A.	Licensed Software Warranty.  Licensor warrants for [INSERT LENGTH OF TIME] from the Commencement Date that Licensed Software will perform in all material respects the functions described in the Documentation when operated in accordance with the Documentation. Licensee, or if permitted by Licensee, any of its Affiliates, must report in writing any breach of the warranties contained in Section 5.1A to Licensor during the warranty period.
	B. 	Title and Authority Warranty.  Licensor warrants (i) that Licensor has the right to grant to Licensee and its Affiliates the license to use the Licensed Software and Ancillary Programs as set forth in this Agreement without violating any rights of any person or entity; and (ii) that no actual or threatened claim or lawsuit, which is material to Licensor’s performance under this Agreement, currently exists by any person or entity based on an alleged violation of such rights by Licensor or any person or entity to which Licensor has licensed such Licensed Software; provided, however, that Licensee’s exclusive remedy and Licensor’s entire liability for any breach of any of the warranties set forth in this Section 5.1B shall be as set forth in Section 5.3.
	C.	Anti-Virus and Disabling Code Warranty.  Licensor warrants that, to its knowledge, the Licensed Software as delivered by Licensor does not contain any virus or computer software code, routines or devices (other than as set forth in the Documentation) designed to disable, damage, impair, erase, deactivate, or electronically repossess the Licensed Software or other software, hardware, or data.  
	D.	Ancillary Program Warranties.  Licensee shall have the benefit of any third party warranties, service agreements and infringement indemnities available to end users of the Ancillary Programs; provided, however, that Licensee’s sole remedy for breach of any such warranty, indemnification, service agreement, or other rights shall be against the third party offering such rights and not against Licensor. Licensor shall assign such third party warranties to Licensee. If such warranties are not assignable, Licensor shall use commercially reasonable efforts to assist Licensee with the enforcement of such warranties against such third parties. In the event that an Ancillary Program causes the Licensed Software to fail to perform in any material respects the functions described in the Documentation, Licensor will use commercially reasonable efforts to provide Licensee with a workaround or fix where such workaround or fix may include, at Licensor’s option, replacing the Ancillary Program with a replacement Ancillary Program having substantially equivalent functionality at no additional charge. 
	E.	Limitations.  The limited warranties set forth herein will not apply to nonconformities determined by Licensor to have been caused by and to the extent of (1) deletions or modification to the Licensed Software caused by a party other than Licensor, unless under the direction of Licensor’s customer support and Licensee performs the changes in accordance therewith, (2) accident, misuse or negligence in the operation or use by Licensee of the Licensed Software, (3) use, adjustments, installation, or malfunction of any products or goods other than those authorized by Licensor, (4) combination of the Licensed Software with hardware, software or other material not intended (as provided in the Documentation) for combination with the Licensed Software, or (5) failure by Licensee to incorporate any Update.
	F.	Disclaimers.  Licensor does not warrant that (i) the Licensed Software will meet Licensee’s requirements, (ii) the Licensed Software will operate in combinations with other hardware, software, systems or data not provided by Licensor (except as expressly specified in writing by Licensor in the Documentation) which Licensee may select for use, (iii) the operation of the Licensed Software will be uninterrupted or error-free, or (iv) all Licensed Software errors will be corrected; provided, however, that if Licensee is current on Support Services fees, Licensor shall be obligated to provide Support Services.  Except as otherwise expressly provided in this Agreement, Ancillary Programs and Licensor Materials are distributed “AS IS.”  THE WARRANTIES ABOVE IN THIS SECTION 5 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND LICENSOR AND ITS LICENSORS HEREBY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND QUALITY OF SERVICE.
5.2	Exclusive Remedies.  Licensee’s exclusive remedy and Licensor’s entire liability for any breach of such warranties shall be as set forth below:
	A.	Licensed Software Warranty.  To use its commercially reasonable efforts to correct or provide a workaround for reproducible Licensed Software errors that cause a breach of this warranty, or if Licensor is unable to make the Licensed Software operate as warranted within a reasonable time considering the severity of the error and its impact on the Licensee, its Affiliates, or Authorized Users, Licensee shall be entitled to return the Licensed Software to Licensor and recover the fees paid to Licensor for the license.
	B.	Anti-Virus Warranty.  The immediate replacement of all copies of the affected Licensed Software in the possession of Licensee or its Affiliates with copies that do not contain such virus or disabling code. In addition, Licensor agrees to use commercially reasonable efforts to assist Licensee or its Affiliates in reducing the effects of such virus, if any, on the Licensed Software.  
5.3	Intellectual Property Infringement.  
If a third party makes a claim against Licensee, its Affiliates, or Authorized Users (“Licensee Group”) that the Licensed Software infringes, misappropriates, dilutes, or otherwise violates any patent, copyright, right to use, trademark, or trade secret (“IP Claim”); Licensor will (i) indemnify and defend Licensee Group against the IP Claim at Licensor’s cost and expense, and (ii) pay all awards, fines, interest, judgments, costs, damages and expenses (including reasonable legal fees) reasonably incurred by Licensee Group directly related to the IP Claim or agreed to in a written settlement agreement signed by Licensor; provided that: (i) Licensee promptly notifies Licensor in writing no later than ten (10) days after Licensee’s receipt of notification of a potential claim; (ii) Licensor may assume sole control of the defense of such claim and all related settlement negotiations; and (iii) Licensee provides Licensor, at Licensor’s request and expense, with the assistance, information and authority necessary to perform Licensor’s obligations under this Section.  In all events, Licensee shall have the right to participate, at its own cost and expense, in the defense of any suit or proceeding through counsel of its own choosing. Notwithstanding the foregoing, Licensor shall have no liability for any IP Claim based on (a) the use of a superseded or altered release of Licensed Software if the IP Claim would have been avoided by the use of a then current unaltered release of the Licensed Software, (b) the modification of Licensed Software not authorized by Licensor, or (c) the use of the Licensed Software other than in accordance with the Documentation and this Agreement, or (d) the combination, operation, or use of the Licensed Software in combination with any software where in the absence of such combination the Licensed Software are not infringing.  
If a third party prevails on its IP Claim or obtains temporary or permanent relief preventing Licensee Group from using any portion of the Licensed Software, or if Licensor believes in good faith that the Licensed Software infringes or is believed by Licensor to infringe, Licensor shall have the option, at its expense, to (a) replace or modify the Licensed Software to be non-infringing, or (b) obtain for Licensee Group a license to continue using the Licensed Software.  If it is not commercially reasonable to perform either of the foregoing options, then Licensor may terminate the license for the infringing Licensed Software and refund the license fees paid for the Licensed Software.  
This Section 5.3 sets forth Licensor’s complete liability and Licensee’s sole and exclusive remedy with respect to infringement of intellectual property rights.
5.4	General Indemnity.  Each party (an “Indemnitor”) shall, to the extent permitted by law, defend and indemnify the other party and its employees, officers, directors and agents (the “Indemnitee”) against all damages for bodily injury, death, or damage to real or tangible personal property, proximately caused by the Indemnitor in the course of performing this Agreement; provided that (i) the Indemnitor receives prompt written notice of the claim from the Indemnitee under this Section, (ii) the Indemnitor has the right to control the defense of such claim and any related settlement negotiations, and (iii) the Indemnitee provides to the Indemnitor, at the Indemnitor’s request and expense, with the assistance, information and authority necessary to perform the Indemnitor’s obligations under this Section. 
6.	Limitation of Liability
6.1  	Exclusion of Consequential Damages. EXCEPT FOR BREACHES OF SECTIONS 2.1, 2.2 and 7.1 HEREIN, IN NO EVENT SHALL LICENSEE, ITS AFFILIATES, LICENSOR, OR LICENSOR’S SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR BY AFFILIATES OR BY LICENSOR’S SUPPLIERS, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
6.2 	Limitation of Liability/Direct Damages. Except for Licensor’s liability for IP Claims (Section 5.3), its obligations to indemnify Licensee under Section 5.4, or for any breach of its Nondisclosure obligations (Section 7.1), the aggregate and cumulative liability of Licensor and its suppliers for damages hereunder shall in no event exceed the aggregate amount of fees paid or payable by Licensee for the Licensed Software under this Agreement in the preceding twelve (12) months.  Except for its obligations to indemnify Licensor under Sections 5.4 and 6.3, or any breach of its obligations to comply with the License Grant (Section 2.1), the License Restrictions (Section 2.2) and its Nondisclosure Obligations (Section 7.1), Licensee’s aggregate and cumulative liability for damages hereunder shall in no event exceed the aggregate amount of fees paid or payable by Licensee under this Agreement in the preceding twelve (12) months.] 
IN NO EVENT WILL LICENSOR, ITS AFFILIATES, SUBSIDIARIES, OR LICENSORS BE LIABLE (FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA, ACCURACY OF RESULTS, OR LOSS OF BUSINESS INFORMATION; IN EACH CASE WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE SOFTWARE.
6.3 	No Third Party Liability. Licensor shall under no circumstances be liable for any claim or demand by any third party based on or related to Licensee's use of the Licensed Software or errors or alleged errors in the Licensed Software, including, without limitation, persons using the facilities or services of Licensee or their heirs or dependents.  Licensee agrees, at its expense, to indemnify, defend, and hold harmless Licensor, its officers, employees, agents, and representatives from and against any and all liability, loss, claims, damages, costs or  expenses (including reasonable attorneys' fees) incurred or sustained by Licensor or such officers, employees, agents, or representatives, as a result of any such claim or demand.
7.	General Terms
7.1	Nondisclosure.  
Each party may have access to information that is confidential to the other party (“Confidential Information”).  Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential.  Licensor’s Confidential Information shall include, but not be limited to, the Licensed Software, Ancillary Programs, Documentation, Licensor Materials, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, Licensee names, prospective Licensee names, and the terms and pricing under this Agreement, regardless of whether such information is identified as confidential.  Confidential Information includes all information received from third parties that either party is obligated to treat as confidential.
A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without use of or reference to the other party’s Confidential Information. In addition, if Licensee recommends or has recommended to Licensor additional features, functionality, or performance that Licensor subsequently incorporates into the Licensed Software, then with respect to such recommendations, Licensee hereby (a) grants Licensor a worldwide, non-exclusive, royalty-free, perpetual right and license to use and incorporate such recommendations into the Licensed Software, and (b) acknowledges that the Licensed Software incorporating such new features, functionality, or performance shall be the sole and exclusive property of Licensor.  All such recommendations that are incorporated into the Licensed Software, Documentation or Licensor Materials shall be free from any confidentiality restrictions that might otherwise imposed upon Licensor pursuant to this Section 7.1, and Licensee shall not be identified as the source of any such recommendations unless otherwise authorized in writing by Licensee.  
Further, this Section 7.1 will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that a party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose Confidential Information (the “responding party”) shall first have given sufficient and prompt written notice to the other party of the receipt of any subpoena or other request for such disclosure; and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued. Notwithstanding the foregoing obligation of the responding party, nothing in this Section 7.1 shall limit or restrict the ability of the other party to act on its own behalf and at its own expense to prevent or limit the required disclosure of Confidential Information.
The parties agree not to make each other’s Confidential Information available in any form to any third party (other than to an Authorized User who is not a direct competitor of Licensor) or to use each other’s Confidential Information for any purpose other than in the performance of this Agreement.  Licensee shall not disclose the results of any performance tests of the Licensed Software to any third party without Licensor’s prior written approval. The parties agree to hold each other’s Confidential Information in confidence and to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of this Agreement.  Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there may be no adequate remedy at law for breach of this Section 7.1 or Section 2 hereunder, and that such breach could cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement.
Notwithstanding the foregoing, in the event of an actual or threatened breach of a party’s obligations regarding the other party’s intellectual property rights or its Confidential Information, the non-breaching party shall be entitled to immediately seek specific performance of the other party’s obligations under this Agreement, as well as further relief as granted by a court of competent jurisdiction.
This Section 7.1 constitutes the entire understanding of the parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information. Upon termination of this Agreement and upon written request of a party and subject to the provisions of Section 4.5, each party shall certify, upon written request, to the other party within thirty (30) days of termination that it has destroyed or returned to the other party all Confidential Information of the other party, and all copies thereof, whether or not modified or merged into other materials.
7.2	Successors and Assigns; Assignment. All provisions of the Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the respective successors, assigns of Licensor and permitted assigns of Licensee.  Licensee party may not assign this Agreement, Licensed Software or an Ancillary Program, to another legal entity, without Licensor’s written consent.  Any purported assignment or transfer made without Licensor’s consent shall be void and shall constitute a material breach of this Agreement.
7.3	Governing Law.  This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California excluding its conflict of law provisions.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. 
7.4	Notices.  All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatories of this Agreement and the relevant Order Form, or to such other address or individual as the parties may specify from time to time by written notice to the other party. 
7.5	Severability.  In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. If any warranty remedy is held to fail of its essential purpose, the limitation of liability herein shall be enforced to the fullest extent permitted by law.  
7.6	Waiver.  The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.  Either party’s failure at any time to require performance by the other party of any provision hereof shall not affect in any way the first party’s right to require such performance at any time thereafter.
7.7. Force Majeure.  Each party will be excused from performance for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation (other than payment) or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures.
7.8	Compliance with Laws; Export Controls.  Licensee agrees to comply fully with all relevant laws and regulations, including but not limited to the U.S. Export Administration Regulations (“Export Controls”).  Without limiting the generality of the foregoing, Licensee expressly agrees that it shall not, and shall cause its representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer the Licensed Software, Documentation, or any direct product thereof to any destination, company or person restricted or prohibited by Export Controls. 
7.9	Relationship Between the Parties.  Licensor is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
7.10	Entire Agreement.  This Agreement applies to all Licensed Software and shall take precedence, unless the Licensed Software is subject to an existing written contract signed between Licensee and Licensor, in which case, the signed agreement shall take precedence. Professional service offerings are governed by other agreements.  Subject to the foregoing, this Agreement, together with the Order Form and its Support Services Policy, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement and such documents.  This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement.
7.11	No Third Party Beneficiary.  Any agreement to pay an amount or any assumption of liability herein contained, express or implied, shall be only for the benefit of the undersigned parties and their permitted successors and assigns, and such agreements and assumption shall not inure to the benefit of the obligees of any other party, whomsoever, it being the intention of the undersigned that no one shall be deemed to be a third party beneficiary of this Agreement.
7.12 Dispute Resolution.

(a)	Dispute Defined.  As used in this Agreement, "Dispute" shall mean (i) any controversy, dispute, disagreement, or claim among the Parties in connection with, relating to, or arising out of this Agreement, including, without limitation, any issue or question regarding its existence, validity, interpretation, performance, non-performance, any breach or alleged breach by any Party under this Agreement, or any other matter relating in any way to this Agreement, whether sounding in contract or in tort.

(b)	Dispute Resolution Procedures. Prior to the filing of any dispute in accordance with Section 7.12 (c) and (d) below, the Parties shall immediately attempt to resolve such Dispute pursuant to informal and amicable negotiations between their respective Senior Executive Officers.  “Senior Executive Officers” shall mean an executive at the level of Vice President or higher designated and identified by a party as being the executive responsible for acting as the Senior Executive Officer under this Section. During this informal resolution process, the parties will continue to perform their respective obligations pursuant to this Agreement. Any Party may initiate such senior management discussions by giving written notice (“Dispute Notice”) of any Dispute not resolved in the normal course of business to any other Party.  Within five (5) calendar days from the date of such Dispute Notice, the Senior Executive Officers of each Party shall, immediately, convene a meeting at a mutually acceptable time and place, and, thereafter, the Parties may convene as often as they reasonably deem necessary within the ensuing ten (10) calendar days to exchange relevant information and to attempt to resolve the Dispute.  The Parties agree that discussions and negotiations at the senior management level shall take place only during such 10-day period, unless extended by the mutual written agreement of the Parties.  Any agreement reached by the Senior Executive Officers of the Parties shall be binding on the Parties and shall be immediately set forth in a written amendment to this Agreement.  If the Dispute has not been resolved by the parties within such 10-day period, or if the Senior Executive Officers of the Parties fail to meet within fifteen (15) calendar days from the date of the Dispute Notice, any Party may initiate litigation.

(c)	The parties agree that any claim or dispute relating to this agreement, or any other matters, disputes, or claims between the parties herein, shall be submitted to non-binding mediation within 30 days of either party to this agreement making a request to the other in writing.  Any such mediation will be held in the State of California at a mutually agreed upon private mediation firm.

(d)	Whether or not mediation is requested by any party herein, any claim, dispute or controversy between parties to this agreement arising from or relating to this agreement or the relationship which resulted from this agreement, including the validity of this arbitration clause or the entire agreement, including any that remain unresolved 120 days after an agreement for mediation, shall be resolved by binding arbitration governed by and to take place in the State of California using a mutually agreeable private alternative dispute resolution firm.  Any award of the arbitrator(s) may be entered as a judgment in any California State court having jurisdiction.  In the event a court having jurisdiction finds any portion of this agreement unenforceable, that portion shall not be effective and the remainder of the agreement shall remain effective.